Schrader v. Nichols

198 A.D.3d 1153

155 N.Y.S.3d 629

Elizabeth SCHRADER et al., Respondents,

v.Shari NICHOLS, Appellant.

531736

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 14, 2021

Decided and Entered: October 21, 2021

O'Connor, O'Connor, Bresee & First, PC, Albany (Michele M. Monserrate of counsel), for appellant.

Gattuso & Ciotoli, PLLC, Fayetteville (Frank S. Gattuso of counsel), for respondents.

Before: Garry, P.J., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Garry, P.J. Appeal from an order of the Supreme Court (Blaise III, J.), entered July 7, 2020 in Broome County, which denied defendant's motion for summary judgment dismissing the complaint.

Plaintiff Elizabeth Schrader sought treatment from defendant, a podiatrist, for bunions and crossover deformities involving the great and second toes on both feet, which caused her pain and prevented her from wearing most shoes. Defendant presented options of conservative treatment, surgery to reconstruct the forefoot or amputation of the second toes and shaving of the bunions. In part because defendant described the latter option as requiring substantially less recovery time than reconstructive surgery, Schrader opted for amputation and bunion shaving. Defendant performed that surgery, with consent and without complication. Months later, after she began experiencing pain and other problems with her toes, Schrader sought treatment from two other podiatrists, who opined that amputation was not the proper treatment for her initial problems. One of those podiatrists performed further surgeries to resolve Schrader's pain and difficulty walking.

Schrader and her spouse, derivatively, commenced this action alleging podiatric malpractice. Defendant moved for summary judgment dismissing the complaint, arguing that her treatment did not deviate from the applicable standard of care and submitting medical records, deposition testimony, her own affidavit and an expert affidavit by Edwin Wolf, a licensed podiatrist. Plaintiffs opposed and submitted a redacted expert affirmation (see CPLR 3101[d][1][i] ), arguing that defendant's offer and performance of the bilateral amputation deviated from the standard of care and caused the alleged injuries. Finding that the parties' submissions raised triable issues of fact, Supreme Court denied defendant's motion. Defendant appeals.

As the proponent of a motion for summary judgment in a podiatric malpractice action, defendant bore the initial burden of establishing that she did not depart from accepted standards of practice in the treatment at issue or, if there was a departure, that any such deviation was not the proximate cause of any injury (see Furman v. DeSimone, 180 A.D.3d 1310, 1311, 119 N.Y.S.3d 284 [2020] ; Derusha v. Sellig, 92 A.D.3d 1193, 1193, 939 N.Y.S.2d 610 [2012] ). "If a prima facie case is established, the burden then shifts to plaintiffs to come forward with proof demonstrating [defendant's] deviation from accepted medical practice and that such alleged deviation was the proximate cause of [Schrader's] injuries" ( Furman v. DeSimone, 180 A.D.3d at 1311, 119 N.Y.S.3d 284 [citations omitted]; see Goldschmidt v. Cortland Regional Med. Ctr., Inc., 190 A.D.3d 1212, 1214, 141 N.Y.S.3d 522 [2021] ). Defendant met her burden through submission of Schrader's medical records and affidavits of defendant and Wolf, each of whom opined that defendant adhered to the accepted standard of care for podiatrists and appropriately considered the patient's age, activity level, health status and treatment goals in offering elective amputation as one of the surgical options (see Longtemps v. Oliva, 110 A.D.3d 1316, 1317–1318, ...